Opinion
A160234
05-12-2021
MICHAEL DENNY, Plaintiff and Appellant, v. JOHN ARNTZ, as Director of Elections et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CPF-19-516970)
In November 2019, San Francisco voters passed Proposition A, San Francisco Affordable Housing Bonds. Appellant Michael Denny brought this action against respondents San Francisco Director of Elections John Arntz, and City Attorney Dennis Herrera, to set aside the measure. His lawsuit alleged various deficiencies in the ballot materials as grounds for contesting the election pursuant to Elections Code section 16100, as well as a claim that the measure violated the California Constitution. The trial court dismissed the action, finding appellant failed to set forth a sufficient basis to support an election contest. Appellant maintains on this appeal that the trial court lacked jurisdiction to enter this order and that he did sufficiently state grounds for the election contest. We affirm the trial court's judgment.
BACKGROUND
On July 30, 2019, the San Francisco Board of Supervisors (Board) passed an ordinance providing for a special election on November 5, 2019, for the purpose of submitting to the city's voters "a proposition to incur bonded indebtedness not to exceed $600 million to finance the construction, development, acquisition, improvement, rehabilitation, preservation, and repair of affordable housing improvements, and related costs necessary or convenient for the foregoing purposes" and related matters.
Under the proposed program, the bond proceeds would be allocated $150 million to "repair and reconstruct distressed and dilapidated public housing developments and their underlying infrastructure"; $220 million to "construct, acquire, and rehabilitate rental housing serving extremely-low and low-income individuals and families," with "a portion" of the proceeds "used to assist members of the City's workforce in jobs with traditionally low compensation levels, such as San Francisco Unified School District and City College of San Francisco employees, nonprofit workers, health care service workers, and service sector employees"; $60 million to "preservation and middle income housing efforts" including "up to $30 million" to "acquire and/or rehabilitate existing housing at risk of losing affordability, whether through market forces or a building's physical disrepair," and a minimum of $30 million "assist middle-income City residents or workers in obtaining affordable homeownership or rental opportunities"; $150 million to "acquire and construct new senior housing"; $20 million to "support predevelopment and new construction of permanent affordable housing opportunities or projects serving San Francisco Unified School District and City College of San Francisco educators and employees earning between 30% and 140% of AMI [area median income] at the time the bonds are issued"; and "a portion" to be used to perform audits as described in the measure.
The ordinance specified the official language to be included on the ballots as follows: " 'SAN FRANCISCO AFFORDABLE HOUSING BONDS. To finance the construction, development, acquisition, and preservation of housing affordable to extremely-low, low- and middle-income households through programs that will prioritize vulnerable populations such as San Francisco's working families, veterans, seniors, and persons with disabilities; to assist in the acquisition, rehabilitation, and preservation of existing affordable housing to prevent the displacement of residents; to repair and reconstruct distressed and dilapidated public housing developments and their underlying infrastructure; to assist the City's middle-income residents or workers in obtaining affordable rental or home ownership opportunities including down payment assistance and support for new construction of affordable housing for San Francisco Unified School District and City College of San Francisco employees; and to pay related costs; shall the City and County of San Francisco issue $600,000,000 in general obligation bonds with a duration of up to 30 years from the time of issuance, an estimated average tax rate of $0.019/$100 of assessed property value, and projected average annual revenues of $50,000,000, subject to independent citizen oversight and regular audits?' "
The ordinance provided that "[t]he word limit for ballot propositions imposed by Municipal Elections Code Section 510 is waived." Under section 510 of the Municipal Elections Code, a general statement of a bond measure adopted by the Board "shall not exceed 100 words."
Pursuant to the San Francisco Municipal Elections Code, a digest of each measure submitted to the voters must be prepared by the Ballot Simplification Committee (BSC) and included in the voter information pamphlet mailed to registered voters. (S.F. Mun. Elec. Code, §§ 500, 502, 515.) The BSC, consisting of five voting members, works in public meetings, with public comment, to prepare the digest, which must be written at "the closest proximity to the eighth grade level of readability as possible." (S.F. Mun. Elec. Code, §§ 610, 620, 515; S.F. Dept. of Elections, Attend Ballot Simplification Committee Meetings <https://sfelections.sfgov.org/attend-ballot-simplification-committee-meetings> [as of May 12, 2021]) The BSC must provide a 24-hour period to receive and act on written requests for reconsideration of a digest, after which it must transmit the digest to the director of elections no fewer than 85 days prior to the election. (S.F. Mun. Elec. Code, § 610.)
Two of the voting members must be appointed by the Mayor of the City and County of San Francisco, one selected from names submitted by the Northern California Newspaper Guild and one an educational reading specialist recommended by the Superintendent of Schools of the San Francisco Unified School District. (S.F. Mun. Elec. Code, § 600) Three voting members must be appointed by the Board, two from names submitted by the Northern California Chapter of the National Academy of Television Arts and Sciences or the Northern California Broadcasters Association and one from names submitted by the League of Women Voters of San Francisco.
The financial analysis of a ballot measure is prepared by the controller and transmitted by the controller to the director of elections. (S.F. Mun. Elec. Code, § 520.)
Materials submitted for publication in the voter information pamphlet are subject to a 10-day public examination period (Elec. Code, §§ 9295, 13313; S.F. Mun. Elec. Code, § 590.) For ballot digests and controller statements, this period must begin no later than noon on the eighty-fourth day prior to the election. (S.F. Mun. Elec. Code, § 590, subd. (b).) During this 10-day public examination period, any voter of the jurisdiction in which the election is being held may seek a writ of mandate requiring any or all of the materials to be amended or deleted. (§§ 9295, subd. (b)(1), 13313, subd. (b)(1).) A peremptory writ of mandate or injunction "shall be issued only upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter, and that issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law." (§§ 9295, subd. (b)(2), 13313, subd. (b)(2).)
Further statutory references will be to the Elections Code except as otherwise specified.
The BSC met regarding Proposition A on August 5, 2019, and a final digest was approved. (Meeting Notice, Ballot Simplification Committee for the Nov. 5, 2019, Consolidated Municipal Election, Agenda for Aug. 5 through Aug. 9, 2019 <https://sfelections.sfgov.org/sites/default/files/Documents/BSC/2019%20Nov/BSC_Meeting_Agenda-2019-August_5-9.pdf> [as of May 12, 2021].) The 10-day public examination period for Proposition A ran from August 13, 2019, to August 23, 2019. (Calendar for the Nov. 5, 2019, Consolidated Municipal Election <https://sfelections.org/tools/cscal_novl9/> [as of May 12, 2021].)
On August 27, 2019, appellant filed a petition for writ of mandate against respondents and the Board. Appellant alleged that Proposition A did not qualify for the ballot because it violated article XIIIA of the California Constitution by purporting to expend funds for purposes other than acquisition or improvement of real property; the ballot statement exceeded the permissible number of words, was primarily an argument in favor of the measure rather than an impartial analysis, and omitted required language; the drafting of the digest was improperly delegated to the BSC, as section 9280 requires the city attorney to prepare an impartial analysis of a measure; the digest was written as an argument in favor of the measure and the BSC deferred to "partisan requests" in drafting it; the controller's statement omitted required information; and respondents improperly included paid arguments in the voter information pamphlet and improperly expended public funds in doing so.
Specifically, appellant alleged the ballot statement failed to comply with section 13119, subdivision (a), which requires that measures submitted to the voters as an initiative or referendum "have printed on them the words 'Shall the measure (stating the nature thereof) be adopted?' To the right or below the statement of the measure to be voted on, the words 'Yes' and 'No' shall be printed on separate lines, with voting targets."
Respondents filed a demurrer and, on October 11, 2019, the trial court sustained the demurrer without leave to amend. As to the constitutional violation in the first cause of action, a writ could be granted only if its issuance would not substantially interfere with the conduct of the election or printing or distribution of election materials as provided by law (§§ 9295, subd. (b)(2), 13314, subd. (a)(2)(B)), and appellant failed to show the relief sought—removal of Proposition A from the ballot and voter information guide—would not interfere with the election, as ballots were required to be sent to overseas voters by September 21. The court sustained the demurrer to the causes of action challenging the ballot statement and digest without leave to amend because such challenges must be filed no later than the end of the 10-day public examination period (August 23) and appellant did not file the petition until August 27. The cause of action challenging the controller's statement failed because granting the writ would substantially interfere with conduct of the election (§ 13314, subd. (a)(2)(B)), as the last day for changes to the voter information pamphlet was September 11, and early voting began on October 7. Finally, the cause of action challenging the paid arguments failed to state a claim because a charter city has control over municipal elections, the Elections Code specifically reserves charter cities' right to control the methods for submitting arguments (§ 9281) and the city circulates arguments both in favor and against the measure, the costs of which are paid by the proponents and opponents.
The court struck appellant's "Request for Disqualification of Judge," which asserted that the court "displayed 'bias' against the Petition" by failing to give it priority over all other civil matters and granting respondents' request for a hearing date that appellant viewed as "likely to prove fatal to the Petition." The trial court explained that while appellant filed his petition on August 27, 2019, he did not file a notice of hearing until September 17, setting the matter for hearing on September 30, 2019, with less than the 16 court days' notice required by Code of Civil Procedure section 1005. On September 24, in response to respondents' ex parte request, the court vacated the September 30 hearing date and ordered an expedited briefing schedule. Respondents' demurrer was filed on September 27, 2019.
The court filed its judgment in favor of respondents on November 12, 2019. Appellant did not appeal, and the judgment became final on January 13, 2020.
Meanwhile, at the election on November 5, 2019, Proposition A passed with 71.6 percent of the votes in favor. The election results were certified on November 26, 2019.
On December 26, 2019, appellant filed a "Statement of Election Contest" against respondents pursuant to Division 16 of the Elections Code (§ 16000 et seq.) The first ground of contest was that the ballot statement failed to conform to the mandate of section 13119, subdivision (a), that it include the question, "Shall the measure (stating the nature thereof) be adopted?" Appellant next alleged the ballot statement failed to comply with the requirement of section 13119, subdivision (b), that it include "the amount of money to be raised annually and the rate and duration of the tax to be levied," in that the ballot statement referred to a "duration of up to 30 years from the time of issuance" that conflicted with the "Controller's Statement" estimating an average tax rate for a 22-year period. Appellant's third claim was that the ballot statement was not an impartial analysis as required by section 13119, subdivision (c), but rather a series of arguments in favor of the measure. Fourth, appellant claimed Proposition A violated article XIIIA of the California Constitution by purporting to expend funds for purposes other than the acquisition or improvement of real property. The fifth claim challenged respondent city attorney's failure to prepare an impartial analysis pursuant to section 9280, disputed the BSC's authority to prepare the digest, and contested the digest as argumentative. The sixth claim challenged the inclusion of paid arguments in the voter information guide as unauthorized by state law, primarily favoring the government's position and unlawfully funded by public money. Finally, appellant's seventh claim alleged the ballot statement violated the maximum number of words permitted under sections 9051, subdivision (b), and 13247.
Appellant represents that the clerk required him to add the words "Petition Re" to the caption of his filing, and the word "Petition" is handwritten on the document, as are the designations "Petitioner" and "Respondents" next to the parties' names.
The matter was set for hearing on January 16, 2020, with respondents to file a response by January 8, and appellant to file a reply by January 13. The order stated, "If the parties wish to stipulate to a continuance of the assigned hearing date and/or to a different briefing schedule, they may appear ex parte or may contact the clerk in Department 302."
Further references to dates will be to the year 2020 except as otherwise specified.
On January 3, appellant emailed the San Francisco City Attorney's Office seeking a continuance of the hearing date. Respondents' counsel replied that they were willing to stipulate to a continuance and proposed two hearing dates within the timeframe appellant requested, each with dates specified for respondents' response and appellant's reply. Counsel called appellant, who said he had not yet seen the email and, when counsel informed him of the two proposed alternative schedules, advised that either hearing date was acceptable. With appellant's agreement, counsel notified the court of the parties' agreement to either of the proposed alternative schedules. The court responded that the hearing would be continued to February 5, "per the agreement of the parties."
Late that evening, appellant emailed the court clerk that respondents had "misrepresented that there was an agreement" and, invoking section 16600 (limiting continuance of trial on election contest to 20 days), requested the hearing be set for January 30. His email attached a document, "AFFIDAVIT TO CONTINUE TRIAL BEFORE COMMENCEMENT NOT EXCEEDING 20 DAYS," that was not served on respondents or filed with the court. The clerk responded that appellant's request was "unclear" and "we cannot open attachments."
Also on January 3, appellant filed a peremptory challenge to Judge Ethan Schulman (Code Civ. Proc., § 170.6) on the ground that the judge was prejudiced against appellant.
When counsel saw appellant's email to the court on Monday morning, January 6, she emailed the court clerk and appellant, stating she had not misrepresented the parties' stipulation. Appellant responded that the parties had not agreed to change the response and reply dates. The clerk asked if there was an outstanding request to the court and appellant replied, "[t]here is no request for the court from me."
Counsel called appellant, left a voicemail and then emailed, stating that she was attempting to reach him to resolve any miscommunication about the hearing date and giving notice that respondents would appear ex parte the following day to request the court confirm the February 5 hearing date and proposed briefing schedule. Counsel noted she was amenable to stipulating to a January 30 hearing date on condition that appellant stipulate to a continuation of the briefing schedule dates, and asked appellant to contact her to resolve the issue informally if possible. Appellant responded that he would be at the ex parte hearing.
The following morning, January 7, counsel served appellant with respondents' ex parte application and supporting papers by email, pursuant to the parties' electronic service agreement. Appellant and counsel appeared at the ex parte hearing and the court ordered that the hearing on appellant's case proceed on February 5, with respondents' opposition due January 24, and appellant's reply due January 31.
On January 9, finding that the current proceeding was "substantially similar" to appellant's pre-election challenge to Proposition A, the trial court struck appellant's peremptory challenge pursuant to the rule that " '[a] peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action. . . .' (Bravo v. Superior Court (2007) 149 Cal.App.4th. 1489, 1493-1494 . . . .)"
Appellant filed lengthy "objections" to the court's order but did not file a petition for writ of mandate as required to obtain review of the order. (Code Civ. Proc., § 170.3, subd. (d).)
Respondents filed their opposition to appellant's election contest on January 27. Appellant did not file a reply and did not appear at the hearing on February 5. The court dismissed the election challenge in its entirety. The first, second, third, fifth and seventh claims, addressing ballot materials, were dismissed on the ground that such challenges must be made before the election, as there is no statutory basis for attacking the postelection effects of ballot material. Additionally, the court found appellant could not demonstrate that the alleged flaws in the ballot materials affected the outcome of the election as required under section 16100, subdivision (c). The constitutional challenge in appellant's fourth claim was dismissed because the court disagreed with appellant's view that the stated objectives of Proposition A "fall outside the constitutional authorization of bonds used 'for the acquisition or improvement of real property.' " The court found the sixth claim, concerning paid arguments, barred under the doctrine of res judicata, as the matter had been "squarely addressed" on the merits in the order dismissing appellant's pre-election suit, which became final due to appellant's failure to appeal.
The court entered its judgment in favor of respondents on February 5, and appellant timely appealed.
DISCUSSION
Appellant characterizes this appeal as being about the trial court's lack of jurisdiction. Ignoring the trial court's reasons for dismissing most of his claims, appellant argues the grounds of contest he raised were meritorious only, as he puts it, to "preserve the issues raised in the Contest for further review." As we will explain, we find no error in the trial court's decision and no basis for appellant's challenges to the court's jurisdiction.
I.
A.
" 'Strict rules embodied in the Elections Code govern a court's review of a properly contested election. " 'It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. [Citations.]' " (Wilks v. Mouton (1986) 42 Cal.3d 400, 404.)' (Gooch v. Hendrix (1993) 5 Cal.4th 266, 277.)" (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192.) A court's authority to invalidate an election is limited to the six bases for contest specified in section 16100. (Ibid.) Appellant's statement of election contest relied upon section 16100, subdivision (c): "Any elector of a county, city, or of any political subdivision of either may contest any election held therein, for any of the following causes: [¶] . . . [¶] (c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000)." Specifically, appellant claimed each of the violations he alleged constituted an "offense against the elective franchise defined in Division 18 (commencing with Section 18000)." (§ 16100, subd. (c).)
Section 16100 provides in full:
Any elector of a county, city, or of any political subdivision of either may contest any election held therein, for any of the following causes:
"(a) That the precinct board or any member thereof was guilty of malconduct.
"(b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office.
"(c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000).
"(d) That illegal votes were cast.
"(e) That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote.
"(f) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.
"(g) That there was an error in the vote-counting programs or summation of ballot counts."
As earlier described, five of the claims in appellant's statement of election contest challenged the ballot statement and digest as failing to comply with statutory requirements for specific wording and for impartiality. As we discussed in a prior appeal addressing appellant's challenge to a proposition in the November 2018 election, such challenges to ballot materials must be made before the election, not after. (Denny v. Arntz (2020) 55 Cal.App.5th 914, 921-922 (Denny I); Friends of Sierra Madre v. City of Sierra Madre, supra, 25 Cal.4th at pp. 192-194; People ex rel. Kerr v. County of Orange (2003) 106 Cal.App.4th 914, 932 (Kerr).) The trial court correctly determined that section 16100 did not provide a basis for the postelection challenges alleged in claims 1, 2, 3, 5, and 7 of appellant's statement of election contest.
In Denny I, appellant failed to raise his challenges prior to the election and could not do so after it. Here, he did attempt to challenge the ballot materials on essentially the same grounds he now raises—but his August 2019 writ petition was not filed within the time period allowed by statute for challenges to such ballot materials and therefore could not be entertained by the court. (§ 9295, subd. (b)(1).) As earlier noted, appellant did not appeal the judgment against him.
This conclusion makes it unnecessary for us to address appellant's argument that the local rules regarding ballot materials are preempted by state law.
The trial court also pointed out that appellant could not prevail on these claims because he could not show the alleged flaws in the ballot materials affected the outcome of the election. "When a contestant seeking to overturn a ballot measure election, as opposed to a candidate election, relies on subdivision (c), he or she must demonstrate that the forbidden act affected the outcome." (Horwath v. City of East Palo Alto (1989) 212 Cal.App.3d 766, 774 (Horwath), citing Canales v. City of Alviso (1970) 3 Cal.3d 118, 129.) As the trial court noted, appellant's statement of election contest expressly acknowledged, "No one can say with any certainty what the will of the voters would have been if they had been given" ballot materials without the irregularities and partiality appellant alleged.
The Horwath court was discussing former section 20021, from which section 16100 derives, and which contained the same provisions now appearing in section 16100, subdivisions (a) through (d) and (f). The only change in the statute's language is the addition of subdivision (e) in section 16100 and redesignation of what were subdivisions (e) and (f) in section 20021 as subdivisions (f) and (g) of section 16100. (See Horwath, supra, 212 Cal.App.3d at p. 773, fn. 9; § 16100.)
Or, to quote the statement of election contest, "if they had been given the whole truth, as mandated by the statutes, and had been presented with a ballot stating the chief purpose of the measure free from language that is untrue, misleading, partial and likely to create prejudice in favor of the measure."
Appellant maintains it is not necessary to show the election outcome would have been affected where the alleged violations concern "mandatory" provisions of the Elections Code rather than "directory" ones, a distinction discussed in Rideout v. City of Los Angeles (1921) 185 Cal. 426. "[A] violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. [Citation.] . . . If the act enjoined goes to the substance or necessarily affects the merits or results of the election, it is mandatory; otherwise directory." (Id. at pp. 430-431.) Appellant asserts that all the grounds in his contest are "substantive" rather than "procedural" and "necessarily affect the merits" of Proposition A, but he offers no basis for this conclusion. Issues such as a ballot statement exceeding the prescribed number of words are unlikely to influence voters' decisions; even deficiencies such as impartiality of or omission of information from the official analysis will not be found to render an election unfair absent consideration of various circumstances beyond the ballot materials themselves, including matters like the substance and extent of "preelection publicity, canvassing and other informational activities." (Horwath, supra, 212 Cal.App.3d at p. 777.) And where, as here, " 'voters are provided the whole text of a proposed law or ordinance, we ordinarily assume the voters voted intelligently on the matter.' " (Denny I, supra, 55 Cal.App.5th at p. 923, quoting Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 126.) Appellant has provided no reason to believe the ballot materials for Proposition A "were so inaccurate or misleading as to prevent the voters from making informed choices." (Ibid.)
The trial court also correctly determined that appellant's sixth claim, regarding the paid arguments in the voter information guide, was precluded by his prior challenge to Proposition A. " 'Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) The requirements for application of the doctrine are that "(1) the decision in the prior proceeding is final and on the merits; (2) the present action is on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding." (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) " ' "The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy." (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811.)' " (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245, quoting Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1619-1620.)
Appellant's present claims regarding the paid arguments are the same as those he raised in his pre-election suit—that inclusion of paid arguments in the voter information guide is unauthorized by state law and the paid arguments primarily favored the government's position and were unlawfully funded by public money. The parties are the same. The trial court decided the issue on the merits in the pre-election suit and, as appellant did not appeal, that decision became final. Res judicata applies to bar appellant's present challenge to the paid arguments.
B.
Appellant's remaining claim is that Proposition A violates article XIIIA, section 1, subdivision (b)(2), of the California Constitution. This provision states an exception to the limitation imposed by article XIIIA, section 1, subdivision (a), that "[t]he maximum amount of any ad valorem tax on real property shall not exceed one percent (1%) of the full cash value of such property." Pursuant to subdivision (b)(2) of section 1, "[t]he limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any of the following: . . . Bonded indebtedness for the acquisition or improvement of real property approved on or after July 1, 1978, by two-thirds of the votes cast by the voters voting on the proposition." Appellant maintains that Proposition A authorizes bonds for purposes other than "acquisition or improvement of real property."
In rejecting appellant's constitutional challenge, the trial court relied upon the principle that "[c]ourts construe constitutional phrases liberally and practically; where possible they avoid a literalism that effects absurd, arbitrary, or unintended results." (Carman v. Alvord (1982) 31 Cal.3d 318, 326 (Carman).) The purposes of the Proposition A bonds are "to construct, develop, acquire, and preserve housing affordable to extremely-low, low- and middle-income households through programs that will prioritize vulnerable populations such as San Francisco's working families, veterans, seniors, and persons with disabilities; to assist in the acquisition, rehabilitation, and preservation of existing affordable housing to prevent the displacement of residents; to repair and reconstruct distressed and dilapidated public housing developments and their underlying infrastructure; to assist the City's middle-income residents or workers in obtaining affordable rental or home ownership opportunities including down payment assistance and support for new construction of affordable housing for San Francisco Unified School District and City College of San Francisco employees; and to pay related costs; . . . subject to independent citizen oversight and regular audits." (S.F. Ord. No. 168-19, §§ 2, 8.) Appellant's argument that these purposes fall outside the constitutional authorization of bonds for "acquisition or improvement of real property," according to the trial court, would violate the principle described in Carman by requiring the court to construe " 'acquire' and 'improve' in a cramped way that would ignore the related meanings and synonyms of the constitutional language."
In his statement of election contest, appellant alleged that various terms used in Proposition A's description of its purposes—"repair," "rehabilitate," "preservation," "efforts" to assist residents in obtaining housing, support for "predevelopment," "audits"—do not mean "acquisition" or "improvement" of real property. This literal parsing of article XIIIA and Proposition A conflicts not only with the rule of liberal and practical construction described in Carman but other established rules of construction as well. "Generally, a statute or local ordinance will be presumed to be constitutional unless its unconstitutionality clearly, positively and unmistakably appears." (Oceanside Mobilehome Park Owners' Assn. v. City of Oceanside (1984) 157 Cal.App.3d 887, 897.) The burden is on the challenger to overcome this presumption. (California Taxpayers Assn. v. Franchise Tax Bd. (2010) 190 Cal.App.4th 1139, 1146.) " '[S]tatutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.' " (Ibid., quoting Southern Pacific Pipe Lines, Inc. v. Board of Supervisors (1992) 9 Cal.App.4th 451, 459-460.) It is apparent that the overriding purpose of the bonds proposed in Proposition A is to finance the development of affordable housing through new construction and rehabilitation of existing housing. This purpose involves acquisition and improvement of real property within the parameters of article XIIIA, section 1, subdivision (b), of our state Constitution.
Appellant's brief in this court additionally advances several arguments in support of his constitutional challenge that he did not articulate in the trial court, including that Proposition A fails to identify specific projects, making the measure a pretext for a blank check allowing the city to spend public money with the public unaware of the specific uses to which it will be put until after bonds are issued and property taxes accrue, and that the measure may violate article XXXIV of the California Constitution, the "Public Housing Project Law," which requires approval of the voters for any "low rent housing project . . . to be developed, constructed, or acquired in any manner by any state public body." "It is the general rule that a party to an action may not, for the first time on appeal, change the theory of the cause of action." (Panopulos v. Maderis (1956) 47 Cal.2d 337, 340; Richmond v. Dart Industries (1987) 196 Cal.App.3d 869, 874.) Moreover, as the city will have to take additional steps to obtain approvals for specific housing projects, these arguments are speculative and fail to present a question ripe for determination. (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59, 64 [" 'courts will decline to adjudicate a dispute . . . if the court is asked to speculate on the resolution of hypothetical situations' "].)
Although it is not clear how it fits into his constitutional argument, appellant also appears to suggest affordable housing is not a valid purpose for general obligation bonds because it does not benefit the general public and generates revenue (in the form of rent). In this regard, appellant draws on the city controller's "Overview of San Francisco's Debt" in the voter information guide, which describes the "two major types of bonds" as general obligation bonds, "used to pay for projects that benefit citizens but do not raise revenue (for example, police stations or parks are not set up to pay for themselves)," and revenue bonds, "used to pay for projects such as major improvements to an airport, water system, garage or other large facilities which generate revenue." (S.F. Voter Information Pamp. & Sample Ballot, Gen. Elec. (Nov. 5, 2019) Election, p. 40 (Voter Information Pamphlet).) In essence, appellant argues affordable housing should be funded by revenue bonds. Aside from the fact that these arguments were not raised in the trial court, appellant presents no authority for his apparent suggestion that bonds issued in order to finance affordable housing necessarily are not for the purpose of acquisition and improvement of real property within the meaning of article XIIA, section 1, subdivision (b), or that general obligation bonds cannot be used to finance projects that generate any revenue.
Arguing that Proposition A hides the fact that rent will be collected for affordable housing, generating revenue for the city, appellant characterizes Proposition A as a "subsidized cheap labor program" that is "needed to keep a steady supply of human chattel available to serve the wealthy, the elite, and the connected, who don't want to perform the menial, low-paying work."
While general obligation bonds are generally used to finance public projects that will not generate revenue, the critical distinction between the general obligation bonds and revenue bonds is that general obligation bonds are backed by the "full faith and credit" of the issuing agency and repaid from tax revenue while revenue bonds are repaid from the revenue produced by the facilities financed with the debt. (McQuillin, The Law of Municipal Corporations, Municipal Bonds (Nov. 2020 Update) §§ 43:10, 43:14 <https://www.westlaw.com/Browse/Home/SecondarySources/MunicipalLawSecondarySources/MunicipalLawTextsTreatises/McQuillinTheLawofMunicipalCorporations?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0> [as of May 12, 2021]; Institute for Local Government, Brief Glossary of Financial Management Terms (Jan. 2013) pp. 23, 26 <https://www.ca-ilg.org/sites/main/files/file-attachments/glossary_updated_2013_financial_management_for_elected_officials_questions_to_ask.pdf?1442597346> [as of May 12, 2021]; Britannica, Revenue bond <https://www.britannica.com/topic/revenue-bond> [as of May 12, 2021].)
Respondent describes appellant as arguing that Proposition A bonds are revenue bonds rather than a general obligation bonds. If this is the import of appellant's discussion of the two types of bonds, it makes little sense: Revenue bonds are "are generally repaid from revenues generated by the bond-financed projects, for example usage fees or parking fees" while general obligation bonds "are repaid by property taxes" (Voter Information Pamphlet, supra, Election, p. 40) and Proposition A makes clear that the bonds are to be repaid by property taxes. (Id. at p. 44 ["shall the City and County of San Francisco issue $600,000,000 in general obligation bonds with a duration of up to 30 years from the time of issuance, an estimated average tax rate of $0.019/$100 of assessed property value . . ."].)
II.
A.
Appellant argues the trial court lacked jurisdiction over his election challenge because a timely peremptory challenge under Code of Civil Procedure section 170.6 is "automatic and not contestable." Although appellant dismisses the basis of the trial court's rejection of his peremptory challenge as an "inane, concocted argument[]," it is in fact an established principle of law.
Code of Civil Procedure "section 170.6 permits a party to disqualify a judge for prejudice based upon a sworn affidavit without having to establish the fact of prejudice. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4.) If the motion is timely and filed in proper form, the trial court must accept it without further inquiry, and the disqualification is effective immediately. (Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1360.)" (Bravo v. Superior Court, supra, 149 Cal.App.4th at p. 1493 (Bravo).) But "[a] peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action. (Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190.) . . . The rule is designed to prevent forum shopping. (Id. at p. 191.)" (Bravo, at pp. 1493-1494.)
"A proceeding is a continuation of the prior or original action, rather than a separate or independent action, if 'it involves " 'substantially the same issues' " and " 'matters necessarily relevant and material to the issues involved in the [original] action.' " [Citation].' (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 589.) The rule is premised on the rationale that if disqualification were permitted in subsequent proceedings, the original judge, ordinarily in the best position to pass upon questions involved, would be disqualified from hearing such matters; litigants could, as a result, gamble on a favorable decision from one judge but, if that decision were unfavorable, seek another judge's ruling on substantially the same issues. (Jacobs v. Superior Court, supra, 53 Cal.2d at p. 191.)" (Bravo, supra, 149 Cal.App.4th at p. 1494.)
The issues in the present case are without doubt "substantially the same" as those in appellant's pre-election lawsuit. Indeed, to a large extent they are identical. Pursuant to Code of Civil Procedure section 170.4, subdivision (b)(1), "if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken." There is no merit to appellant's claims that Judge Schulman or the Presiding Judge, who appellant believes was required to assign a different judge, acted improperly.
B.
Appellant contends the trial court also lacked jurisdiction because the judge "received 'gifts' of many thousands of dollars" in violation of Code of Civil Procedure section 170.9. The argument is directed at employment compensation and benefits paid to judges by counties, which appellant sees as violating the constitutional requirement that "[t]he Legislature shall prescribe compensation for judges of courts of record." (Cal. Const., art. VI, § 19.) As we understand it, appellant's argument is that compensation paid by counties amounts to a gift because the fact that the amount paid differs widely between counties (Sturgeon v. County of Los Angeles (2015) 242 Cal.App.4th 1437, 1450 (Sturgeon)), while all judges have the same duties, shows it is not based on consideration.
The county payments appellant takes issue with are authorized by a statute whose constitutionality has been established. Government Code section 68220, subdivision (a), provides, " 'Judges of a court whose judges received supplemental judicial benefits provided by the county or court, or both, as of July 1, 2008, shall continue to receive supplemental benefits from the county or court then paying the benefits on the same terms and conditions as were in effect on that date.' " The constitutionality of this legislative prescription was upheld in Sturgeon, supra, 242 Cal.App.4th at page 1446: "[T]he statute establishes a very tight fit between what the Legislature enacted and any actual compensation paid. There is no room for county choice other than a 'toggle switch' opt-out provision in subdivision (b), and even then the individual counties have no role in fixing compensation. The counties pay at the level prescribed in subdivision (a), or they pay nothing. Thus the Legislature, not the counties, has 'prescribed' the supplemental benefits, pegging them to a number readily ascertainable and beyond any county's control. The result is thus completely in accord with the meaning of the word 'prescribed' as used in article VI, section 19 of the California Constitution."
The "opt-out provision" the Sturgeon court referred to is that "[a] county may terminate its obligation to provide benefits under this section upon providing the Administrative Director of the Courts and the impacted judges with 180 days' written notice. The termination shall not be effective as to any judge during his or her current term while that judge continues to serve as a judge in that court or, at the election of the county, when that judge leaves office." (Gov. Code, § 68220, subd. (b).)
Government Code section 68220, subdivision (b) includes a final sentence, not relevant here and not included in our quotation above, which Sturgeon held to be "unconstitutional surplusage": " 'The county is also authorized to elect to provide benefits for all judges in the county.' " (Sturgeon, supra, 242 Cal.App.4th at p. 1446.)
Appellant points out that Sturgeon did not "deal with gifts under CCP 170.9." But judges' salaries and benefits are compensation for their employment, not gifts, and county differences in compensation do not make this any less true.
Appellant additionally argues that the Political Reform Act prohibits all San Francisco judges from hearing his election contest because their receipt of income exceeding $500 in the preceding 12 months means they have an "unreported 'financial interest' in the City" that precludes their making a decision in this matter. (Gov. Code, §§ 87100 ["No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest."]; 87103, subd. (c) [defining financial interest as including income of $500 or more "provided or promised to, received by, the public official within 12 months prior to the time when the decision is made"].) Ignoring the fact that the Political Reform Act excludes "[s]alary and reimbursement for expenses or per diem, and social security, disability, or other similar benefit payments received from a state, local, or federal government agency" from its definition of "income" (Gov. Code, § 82030, subd. (b)(2)), appellant challenges the validity of Government Code section 82048, which excludes judges from the definition of "public official." Appellant did not raise this issue in the trial court and we will not entertain it. (Denny I, supra, 55 Cal.App.5th at p. 926; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 842 ["Ordinarily a party is prohibited from asserting on appeal claims to relief not asserted or requested in the court below"].)
III.
Finally, appellant argues the trial court had no jurisdiction to hold an ex parte hearing, rendering void its orders setting a briefing schedule and striking the peremptory challenge, or to entertain respondents' opposition to the statement of election contest (which appellant characterizes as a demurrer). These arguments are based on the principle that an election contest is a special proceeding in which the court possesses only the powers granted by the statute creating the special proceeding. (Dorsey v. Barry (1864) 24 Cal. 449.) Appellant argues the procedures applicable to election contests set forth in Division 16 of the Elections Code (§ 16100 et seq.) (election contest rules) do not authorize ex parte applications, briefing schedules or demurrers.
Appellant argues that respondents and the court anticipated his argument that the elections contest rules do not permit consideration of a demurrer (because appellant made this argument in Denny I) and therefore "the device for the demurrer became the 'briefing schedule,' " while respondents' opposition "was a series of objections, otherwise known as a demurrer." As respondents point out, appellant's characterization is immaterial, as section 16602 permits the court to dismiss the case on a standard no different from that applicable to a demurrer. (Denny I, supra, 55 Cal.App.5th at p. 925; § 16602 [court "may dismiss the proceedings if the statement of the cause of the contest is insufficient"]; Code Civ. Proc. § 430.10, subd. (e) [authorizing demurrer if "[t]he pleading does not state facts sufficient to constitute a cause of action"].)
In Denny I, supra, 55 Cal.App.5th at page 925, we rejected the argument that the defendants were not authorized to file a demurrer because the case was governed by the election contest rules and not the Code of Civil Procedure. We explained, appellant's "argument is premised on his assumption that his complaint states a claim under section 16100 subdivision (c), which, as we have addressed above, is incorrect. Because [appellant] does not properly allege a section 16100 subdivision (c) claim, limiting the trial court's procedures to those in [the election contest rules] and precluding a demurrer is unwarranted here." (Denny I, at p. 925.)
Section 16444 provides, "No special appearance, demurrer or objection may be taken other than by the affidavits which shall be considered a general appearance in the contest."
As discussed above, appellant has failed to properly state a claim under section 16100, subdivision (c), in the present case as well. Accordingly, limiting the trial court's procedures to those in the elections contest rules is again unwarranted.
Appellant further argues that even under the California Rules of Court, the trial court lacked authority to entertain respondents' ex parte application because the application did not comply with the requirements that the applicant "make an affirmative factual showing . . . of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte" (Cal. Rules of Court, rule 1202(c)) and provide notice stating "with specificity the nature of the relief to be requested" (Cal. Rules of Court, rule 1204(a)(1)). In appellant's view, there was no emergency justifying ex parte relief and counsel's asserted need to clarify the briefing schedule was a lie, the "true purpose" of the application having been to oppose appellant's peremptory challenge. Appellant further contends the court violated his right to due process by proceeding with the hearing over his objections and without providing him a meaningful opportunity to respond.
Appellant ignores the exigency created by the parties' conflicting views of the continuance they agreed to on January 3. Given respondents' counsel's belief that the briefing schedule had been continued along with the continuance of the hearing date from January 16 to February 5, by the time she learned on January 6 of appellant's assertion that he did not agree to change the briefing schedule—and in fact sought an earlier hearing date—only two days remained until the deadline for respondents' brief pursuant to the original schedule. With appellant having declined to resolve the issue informally, counsel was in urgent need of clarification from the court in order to avoid irreparable injury to respondents' interests due to her inability to adequately prepare the response to appellant's statement of election contest under the original briefing schedule. There is no basis for appellant's claim that counsel's stated need for the hearing was a lie.
As for the court striking appellant's peremptory challenge at the ex parte hearing, appellant's contention that he was denied due process could have been raised by a petition for writ of mandate seeking review of the order. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal." (Code Civ. Proc., § 170.3, subd. (d).) The writ petition must be filed within 10 days after service of written notice of the court's order. (Ibid.) Appellant did not seek review of the order striking his peremptory challenge and cannot pursue a challenge to that order on this appeal. (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 354.)
Respondents' request for judicial notice of newspaper articles pertaining to the affordable housing crisis in San Francisco, offered in support of its motion for calendar preference but not previously ruled upon, is denied as moot.
The day before oral argument in this matter, appellant filed a letter (dated 11 days earlier) offering a case not previously cited in support of his arguments that the courts have acted without jurisdiction and violated his rights to due process and a trial on the merits. The case, O'Dowd v. Superior Court of San Francisco (1910) 158 Cal. 537, obviously could have been cited in appellant's briefs, and adds nothing to the principles already presented in those briefs and discussed in this opinion.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.